Plaintiffs assail Va. public-records law on 2 fronts

WASHINGTON — The Supreme Court agreed on Oct. 5 to review a Virginia case that could put a stop to the increasing balkanization of state freedom-of-information laws.

At issue in McBurney v. Young is a provision of the Virginia FOI law that limits access to state documents under the law to Virginia residents — though it makes an exception for out-of-state news outlets that circulate or broadcast within the commonwealth. A growing number of other states, including Arkansas, Tennessee, New Hampshire and Georgia, have similar provisions or policies restricting access to state residents only.

News organizations and good-government groups have joined the case to make a strong argument that the law impedes reporting and public accountability. But they, the plaintiffs and other participants in the case have also framed the law as an infringement on the national “information industry” — potentially a winning argument before a pro-business Court.

The suit was brought by two non-Virginians: Rhode Island resident Mark McBurney, who was seeking Virginia documents to support his claim that the state bungled enforcement of a child-support order against his wife, and Roger Hurlbert, a Californian whose business of obtaining real estate documents for private clients was thwarted by the Virginia law.

They claim that the Virginia-only provision of the law violates two parts of the Constitution: the privileges and immunities clause, which aims to put citizens of all states on an equal footing, and the so-called dormant commerce clause, which bars discrimination against interstate commerce. (It is called “dormant” because it is not explicitly stated in the Constitution, but is inferred from the constitutional provision granting Congress the power to regulate interstate commerce.)

The 4th U.S. Circuit Court of Appeals upheld the Virginia law, finding that it violated neither of the constitutional provisions. McBurney’s request was only of “personal import” and did not rise to the level of nationally important information, the appeals panel said. And the infringement on Hurlbert’s business was only “incidental,” leaving him other ways to do business in Virginia. The ruling directly conflicts with a 2006 decision by the 3rd Circuit striking down a Delaware law similar to Virginia’s.

Deepak Gupta, lawyer for the plaintiffs, countered the 4th Circuit ruling in his petition by asserting that the law significantly impeded the nationally important interest of access to government records, and therefore “hinders the Nation’s vitality and development as one political community,” an important factor in privileges-and-immunities cases. As for the commerce clause, Gupta argued that “the procurement, compilation, and publication of public records is a major industry.” He noted that a 2000 Supreme Court ruling, Reno v. Condon, established that public records such as driver’s-license records can be viewed as an “article of commerce.”

The Coalition for Sensible Public Records Access and numerous companies involved in information-gathering bolstered that argument in a friend-of-the-court brief. “The business of collecting, aggregating, indexing, and creating new services from public records is interstate commerce. A state statute that discriminates against out-of-state businesses engaged in the same pursuits as their in-state counterparts discriminates against interstate commerce in violation of the dormant commerce clause.”

Judicial Watch submitted a historical brief to the court, asserting that under common law dating back centuries, “the right of access to public records is a basic right of all persons in democratic societies.”

The case will be argued this winter, with a decision expected before the Court term ends in June.

The First Amendment Center is an educational organization and cannot provide legal advice.

Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.

Gene Policinski, chief operating officer of the Newseum Institute, also is senior vice president of the First Amendment Center, a center of the institute. He is a veteran journalist whose career has included work in newspapers, radio, television and online.

John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.

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